Opinion: Treaty doesn't promise off-reservation water for tribes

Every tribal compact in Montana, except the proposed Salish and Kootenai compact, identifies a purpose of the Indian reservation, and determines an amount of water required to fulfill the purpose of the reservation. No other tribe has claimed or threatened to seek off-reservation water rights.

The Confederated Salish and Kootenai Tribes claim that because Article III of the Treaty of Hellgate secures a right to take fish… in common with the citizens of the territory in their aboriginal territory — which is west of the Continental Divide and does not include any portion of Eastern Montana — they have a “water right for instream flow” off reservation.

Since when does a right to take fish mean a water right? The language of Article III in the Treaty of Hellgate is the same language as nine other tribes in Washington, Oregon, and Idaho, all negotiated by Gov. Isaac Stevens, and the treaties of these tribes are therefore called “Stevens treaty tribes.”

What the Water Compact Commission is attempting to do in the Flathead compact is to create a new type of water right from language that guarantees access to fishing sites. The commission and the Confederated Salish and Kootenai Tribes are skating on thin legal and precedential ice. Indeed, a law review article written in 2006 by John Carter, the tribes’ own lawyer, states that this new type of water right is unrecognized by the federal reserved rights doctrine (Winters), the McCarran Amendment, and the Montana Constitution. So the tribes and the compact commission collaborated to set precedent by creating this new water right out of thin air.